(concurring).
The majority opinion, concluding that an acquittal on the merits occurred here, properly does not reach the merits of the waiver of the right to challenge a defect in the complaint or the double jeopardy arguments. I join the majority opinion but write separately because, in my view, the dissent does not adequately acknowledge the complexity of the underlying issues.
I begin with the observation that this case rests at the intersection of constitutional and statutory protections against self-incrimination and provisions of the Minnesota Rules of Criminal Procedure. The dissent argues that “the district court erred when- it considered Sahr’s untimely motion to dismiss the complaint based on a known defect in the complaint after the jury was sworn.” The dissent also argues that when a defendant deliberately fails to raise a known defect in the complaint before the jury is sworn, constitutional and statutory double jeopardy protections do not bar future prosecution. The implication of this latter argument is that a defendant not only has a right, but ■ an obligation, to challenge known defects in a complaint before trial and failure to do so not only results in a waiver of the right to challenge the complaint at a later time, it also- automatically results in forfeiture of double jeopardy protections.
I turn first to- the waiver argument. Although it seems self-evident, as the dissent argues, that our rules require a defendant in a criminal proceeding to make a *94motion for dismissal of a complaint including “all defenses, objections, issues, and requests then available,” and that failure to do so “constitutes waiver,” Minn. R.Crim. P. 10.01, subd. 2, whether that provision applies to what occurred here is less clear.
What happened here was not the failure of the State to draft a sufficiently detailed complaint, such as was alleged to have occurred in State v. Stagg, 342 N.W.2d 124 (Minn.1984). Here, the prosecution charged the wrong offense altogether, an offense which everyone concedes the defendant was not guilty of. Not cited by either party, but perhaps relevant here, are the provisions of Rule 9, which require the defense to inform the prosecutor in writing of “any defense, other than not guilty, that the defendant intends to assert.” Minn. R.Crim. P. 9.02, subd. 1(5) (emphasis added). The dissent dismisses this language by characterizing it as a discovery rule; perhaps, although the relevance of that characterization is not immediately evident. What it does suggest, however, is that a defendant has no obligation to tell the State it cannot prove the crime charged. The dissent cites no authority, and I have not found any, that specifically holds that the provisions of Minn. R.Crim. P. 10.01 apply to the kind of fundamental failure of the State to charge the appropriate offense at issue here.
Key to the argument of the dissent is that Sahr made an untimely motion to dismiss the complaint based on a known defect in the complaint after the jury was sworn. But the dissent does not point to any specific language or behavior on the part of the defendant that challenges the adequacy of the complaint. Although the defendant requested that the district court on its own motion dismiss the complaint in the interests of justice pursuant to Minn. Stat. § 631.21 (2010), the defendant never cited the inadequacy of the complaint as the legal grounds for dismissal. Instead, Sahr’s request could be more properly seen as a motion for judgment of acquittal pursuant to Minn. R.Crim. P. 26.031 based on the fact that there was insufficient evidence to sustain a conviction.2 Although a *95motion for judgment of acquittal is typically made at the close of evidence for either party, here the State conceded on the record that it did not have sufficient proof to establish the charged crime. At the end of the day, the applicability of the waiver argument under Rule 10 is much more complicated than a simple recitation of the rule would seem to suggest.
But even if we assume the-failure to timely raise objections to the complaint may result in a waiver of the right to challenge the complaint at a later time, it is not self-evident that such a waiver also necessarily results in the forfeiture of the constitutional and statutory protections against double jeopardy. The dissent relies heavily on United States v. Kehoe, 516 F.2d 78 (5th Cir.1975), for its argument, which is not entirely on point here. In Kehoe, after the jury was impaneled and the government had presented its case-in-chief, the defendants “moved for a judgment of acquittal on the ground, inter alia, that the indictment failed to charge an offense,” and the district court granted the motion. Id. at 81 (internal quotations marks omitted). Shortly thereafter, the government procured a new indictment against the - defendants for the same offense, and the defendants moved to dismiss the indictment, contending that double jeopardy barred the new indictment. Id. The Fifth Circuit recognized that a “verdict ■ of acquittal ... is a bar to a subsequent prosecution for the same offense.” Id. at 82. (citation omitted) (internal quotation marks omitted). But because it determined that the district court’s order was not a judgment of acquittal,3 the Fifth Circuit proceeded to a double jeopardy analysis and concluded as follows:
[A] defendant who for reasons of trial tactics delays until mid-trial a challenge to the indictment that' could have been made before the trial — and before jeopardy has attached — is not entitled to claim the protection of the double jeopardy clause when his objections to the indictment are sustained.
Id. at 86.
In Kehoe, the Fifth Circuit based its holding on the fact that the defendants waited until midtrial to challenge the indictment.4 Here it is unclear whether *96Sahr ever challenged a known defect in the complaint, because it is at least arguable that he instead made a motion for judgment of acquittal based on insufficient evidence. The dissent departs from the reasoning of Kehoe by concluding instead that when a defendant “fail[s] to raise a known defect in the complaint before trial, as required by court rule,” the defendant is not entitled to protection against double jeopardy. In other words, neither Kehoe nor the dissent address the possible situation in this case: Sahr did not object to the complaint, either before or during the trial, and the case was decided on its merits after the jury was impaneled and sworn. The logical extension of the dissent’s analysis suggests that even in this situation, Sahr would not be entitled to double jeopardy protection, a proposition for which there is no support.5
Key to the argument of the dissent is that there is an obligation on the part of the defendant to challenge known defects in the complaint. The dissent cites no authority for this proposition, and I can find none. What little we have said hints otherwise. For example, in State v. Ewing, we observed “the state is required to establish by proof beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged in the indictment. In the absence of such a degree of proof of the defendant’s guilt he is entitled to an acquittal.” 250 Minn. 486, 442, 84 N.W.2d 904, 909-10 (1957). Additionally, lurking in the background are interesting constitutional self-incrimination arguments. Does requiring a defendant to make a motion challenging a fundamentally flawed complaint, essentially asserting that the defendant is not guilty of the charged offense but, by implication, might be guilty of some other offense, violate the prohibition against self-incrimination set out in the Fifth Amendment to the United States Constitution?
My point in this concurring opinion is not to argue that the dissent is wrong or to argue for an alternative disposition of these issues, but simply to note the significant challenges and complications inherent in unraveling some of the underlying issues that the majority opinion correctly does not reach and that the dissent suggests, incorrectly in my view, are easily resolved.
Because I conclude there is a good-faith argument that the defendant was not obligated to give notice to the State of its failure to charge the correct offense, it necessarily follows that I do not agree that *97counsel for the defendant committed “rule violations” nor do I agree that defense counsel “improperly manipulated” court procedures. Although the final answer to all of the constitutional and rule-based questions raised by this appeal awaits another day, I find nothing improper in the actions of defense counsel.
. The dissent relies heavily on our decision in State v. Holton, 88 Minn. 171, 92 N.W. 541 (1902), for its conclusion that there was no final judgment of acquittal by the district court. The position of the dissent is not without merit, and the meaning and applicability of Holton awaits determination in some fu- ’ ture dispute; among other complications, neither the language used by our court nor the procedural background to Holton are easily translatable to present-day practice. But it bears recognizing here that the facts of Hol-ton are distinguishable from the facts of this case. In Holton, after the jury was impaneled and sworn, the defendant objected to the presentation of any evidence because the indictment did not state a public offense. Id. at 172, 92 N.W. at 541. The objection was sustained by the district court, and we agreed and dismissed the indictment. Id. at 172-73, 92 N.W. at 541-42. In holding that there was no final judgment, we stated:
[Wjhere the defendant raises the question of the sufficiency of the indictment at the trial, and the court correctly holds that it does not state facts constituting a public offense, and, as in this case, dismisses the indictment, there is and can be no final judg-ment_
Id. at 174, 92 N.W. at 542 (emphasis added). Unlike the defendant in Holton, Sahr never formally objected to the complaint based on a defect. Furthermore, the district court in this case did not dismiss the case because the complaint failed to state the elements of a crime, as is essentially what happened in Hol-ton, but rather because the evidence was insufficient to sustain a conviction, and concluded that because the merits of the offense *95had been reached double jeopardy barred further prosecution. As we recognized in,Hol-ton, an "acquitt[al] on the merits” operates to bar a second prosecution. Id. at 174, 92 N.W. at 542.
The dissent’s claim that there was no final judgment because the district court dismissed the case on the ”ground[s] of a variance between the indictment and the proof” is an unwarranted expansion of our holding in Holton. Id. at 174, 92 N.W. at 542. Based on the facts of Holton, there is no reason to conclude that the language — “acquitted on the ground of a variance between-the indictment and the proof” — applies to dismissal due to insufficiency of the evidence in addition to dismissal based on insufficiency of the complaint. Id. at 174, 92 N.W. at 542.
. In reaching this conclusion, the Fifth Circuit stated:
In these circumstances [the district court]’s ruling can only be characterized as purely legal — and hence not an acquittal. There was no conclusion on innocence or guilt. Consequently," since the rule forbidding further proceedings after an acquittal is inapplicable here, we must now consider whether the double jeopardy clause prohibits further prosecution of defendants who procure the mid-trial dismissal of the indictment on the ground that it fails to state an offense.
Id. at 83.
. The dissent does not define what constitutes a "midtrial” challenge to a complaint. But the dissent suggests that the “defense counsel raised the issue” of the inadequacy of the complaint when it asked for certain jury in- • structions. Although I do not argue for any specific definition of a “midtrial” challenge to a complaint, the inclusion of requests for jury *96instructions within that definition is at best an awkward fit.
. In United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), the Supreme Court held that a verdict of acquittal, in a case in which a defendant has failed to object to the indictment as insufficient, is a bar to a second indictment. Although Ball involved a verdict of acquittal instead of a mistrial, the facts are similar to the case at hand, and Ball is therefore instructive-. In that case three men were indicted and tried for murder; two were convicted by a jury and one acquitted. Id. at 663-64, 16 S.Ct. 1192. The Supreme Court reversed the convictions on the ground that the indictment was fatally deficient in "failing to aver either the time or the place of the [victim’s] death.” Id. at 664, 16 S.Ct. 1192. Shortly thereafter a proper indictment was returned and the government retried all three of the original defendants; that trial resulted in the conviction of all. Id. at 665-66, 16 S.Ct. 1192. The Supreme Court reversed the conviction of the one defendant who originally had been acquitted, sustaining his claim of double jeopardy:
[W]e are unable to resist the conclusion that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing.
Id. at 669, 16 S.Ct. 1192.